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Kerala HC dismisses appeal against trial court order on indigency plea

The division bench of Justice A. Hariprasad and Ziyad Rahman A.A. observed, "The plea of indigency should be made with utmost honesty and bona fides since approval of the same will have an impact on the exchequer as well as on the opposite party."

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ILNS: The Kerala High Court has dismissed an appeal filed against the order passed by a trial court rejecting the plea of indigency and directed the plaintiff to pay the requisite court fee in the suit.

In her suit filed before the lower court, the appellant claimed to be an indigent person and prayed to the court to exempt her from paying the court fees but respondents in their counter submitted that their mother is in possession of 1.56 acre dry land and gold ornaments worth Rs 5 lakh. She also suppressed her monthly income of Rs 25,000, earned out of the usufructs taken from the disputed properties and approached the court claiming to be an indigent person.

The division bench of Justice A. Hariprasad and Ziyad Rahman A.A. observed, “The plea of indigency should be made with utmost honesty and bona fides since approval of the same will have an impact on the exchequer as well as on the opposite party.”

The Court further held, “True and bona fide omission to show the particulars of any moveable or immoveable property belonging to the applicant shall not be a reason to penalise him. But, it is for the applicant to explain the reason for the omission and it is also for him to show that it was a bona fide omission. Therefore, we find no reason to defer from the view taken by the earlier Division Bench in Mathew’s case.”

This matter is an appeal filed by the mother of the respondents. Appellant alleges that two documents were caused to be executed in the names of her daughters (respondents) by perpetrating fraud and misrepresentation regarding the contents of the documents.

The appellant further alleged that her daughters in cahoots with their husbands committed the fraud and misrepresentation. And, therefore she approached the trial court with a suit by invoking the provisions under Order XXXIII of the Code for setting aside the two alleged settlement deeds with a prayer of permanent prohibitory injunction.

The trial court after considering the oral and documentary evidence accepted the contentions of the respondents and directed the plaintiff to pay the requisite court fee in the suit. And aggrieved by this trial court’s order appellant approached High Court challenging the order of trial court.

Under Code of Civil Procedure 1908, in order to qualify a person indigent, he need not be in abject poverty. Legal requirement under Order XXXIII Rule 1 of the Code to consider a person indigent is that he should not be possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject matter of the suit) to pay the fee prescribed by law for the plaint in a suit that he proposes to file.

Counsel for the appellant has submitted before the Court that appellant had not suppressed any material fact. Except articles worth Rs 3,400, no other property or cash is available with her to pay the requisite court fee.

Opposing this contention of the appellant, respondents contending that the appellant is in possession of other immoveable properties and also derives income from the properties settled in the names of the respondents. Besides, she has gold ornaments worth Rs 5 lakh. Going by the averments in paragraph 15 of the plaint, it can be seen that the appellant claims to be in possession and enjoyment of A and B schedule properties.

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The Court observed, “No civilized society could view indigency with disdain. Not only our law but our ancestors too were compassionate to indigent persons.”

In this case Court find no legal infirmity in the finding of the trial court, especially when there are reasons to find from her own pleadings that the appellant has not disclosed the true facts to establish her indigency. Moreover, the appellant failed to personally testify or adduce any evidence before the court to establish that omission to include all her properties in the application was a bona fide mistake.

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